5.
—(1) No person shall employ a foreign employee unless the foreign employee has a valid work pass.
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(2) No foreign employee shall be in the employment of an employer without a valid work pass.
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(3) No person shall employ a foreign employee otherwise than in accordance with the conditions of the foreign employee’s work pass.
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(4) In any proceedings for an offence under subsection (1), it shall not be a defence for a defendant to prove that he did not know that the employee was a foreigner unless the defendant further proves that he had exercised due diligence to ascertain the nationality of the employee.
(5) For the purpose of subsection (4), a defendant shall not be deemed to have exercised due diligence unless he had checked the passport, document of identity or other travel document of the employee.
(6) Any person who contravenes subsection (1) shall be guilty of an offence and shall —
(a)
be liable on conviction to a fine not exceeding $15,000 or to imprisonment for a term not exceeding 12 months or to both; and
(b)
on a second or subsequent conviction —
(i)
in the case of an individual, be punished with imprisonment for a term of not less than one month and not more than 12 months and also be liable to a fine not exceeding $15,000; and
(ii)
in the case of a body corporate, be punished with a fine not exceeding $30,000.
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(6A) Where a court has convicted a person for the contravention of subsection (1), the court shall, in addition to imposing on that person any other punishment, order the payment by him of a sum which is equal to the levy which would have been payable if any work pass had been issued for the period during which any foreign employee was employed by the person in contravention of subsection (1), and any such payment ordered shall be recoverable as a fine.
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(7) Any person who contravenes subsection (2) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12 months or to both.
(7A) Any person who contravenes subsection (3) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000.
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(8) For the purposes of this section —
(a)
the levy payable shall be determined using the lowest applicable monthly rate of levy as specified in an order made by the Minister under section 11 in respect of the trade or type of occupation of the foreign employee at the date when he was first employed by the defendant without a valid work pass, and a certificate issued by the Controller and tendered in court shall be prima facie evidence of such rate;
(b)
for the avoidance of doubt, where a person has been convicted of an offence under subsection (6), and he has on a previous occasion been convicted for contravening section 5(1) of the Employment of Foreign Workers Act (Cap. 91A, 1997 Ed.) in force immediately before 1st July 2007, the first-mentioned conviction shall be considered a second or subsequent conviction under subsection (6); and
(c)
all convictions against the same person for the contravention of subsection (1) at one and the same trial shall be deemed to be one conviction.
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